Sperm, Egg and Embryo Donation in NY and NJ: What to Know

When you decide to grow your family through third-party assisted reproduction (also called collaborative reproduction) at least one person who does not intend to be a parent to the child is involved. This person could be one or more of the following: a surrogate (or gestational surrogate or carrier); a gamete (sperm or egg) donor; or an embryo donor if embryo donation will be involved.

If you choose to have a child through egg, sperm or embryo donation, the medical process is complicated enough on its own, but there are also some important legal considerations you should be aware of.

New York and New Jersey law is very limited in the protection afforded participants in third-party assisted reproduction. In fact, the only circumstance clearly covered by the New York or New Jersey statutes is when donated sperm is used to artificially inseminate a married woman under a doctor’s supervision with her spouse’s consent. In this one situation, the potential rights of the donor are extinguished and the consenting spouse is securely recognized as the legal parent of the child.

Therefore, sperm donation which takes place in conjunction with IVF, egg donation and embryo donation is not covered by either state’s statutes. Because of the lack of protection afforded by state law, people are advised to retain experienced legal counsel to help ensure that all participants fully understand and consent to the legal ramifications, and legal uncertainties, of conceiving a child using donated gametes.

Fortunately, third-party assisted reproduction is an area of expertise for us at Rumbold & Seidelman. We can assist by drafting legal agreements to be signed by you and the gamete or embryo donor to ensure that your rights and the rights of your future children are protected.

To learn more about egg, sperm and embryo donor agreements and the other services we offer, give us a call at 888-962-3001. To help you better understand the process, we’ve explained the basics of the donation process and the components of the donation agreement below.

Sperm and Egg Donation

A common way for single people, same-sex couples and infertile couples to become biological parents is through a gamete donation. However, using another person’s eggs or sperm comes with legal complications — mainly dealing with parental rights and parental obligations.

In most cases, when an anonymous sperm or egg donor donates their gametes to an egg or sperm bank, or directly to an IVF clinic, they sign a form releasing them from any parental rights or responsibilities for any child born through their donation. Therefore, when you receive anonymous sperm or eggs from a clinic or gamete bank, the legalities are usually taken care of.

However, if you want to use an egg or sperm donor that you know or one selected by you through a matching entity, you will need to enter into an egg or sperm donor agreement. While these agreements are not always legally enforceable, they are still essential because they establish the parties’ intentions and expectations with respect to the donation.

In our experience, donors and intended parents benefit not only from the additional legal security afforded by these agreements but they also benefit from the review process itself. Those who have gone through the detailed process of reviewing these agreements with legal counsel are better informed throughout the medical and legal process.

Because New York and New Jersey laws can be complicated, especially with regard to protecting your parental relationship with a child conceived through gamete donation, it’s important for you to work with experienced attorneys. Rumbold & Seidelman can help you legally protect your rights and the rights of your unborn child by drafting a donor contract.

Some of the issues addressed in the donor contract in NY or NJ are:

  • Parental rights to the child
  • Desired confidentiality
  • Any limits on the use of the gametes
  • Responsibility for medical expenses
  • Insurance coverage
  • Potential legal and medical risks
  • Compensation — if any — to donors
  • Whether the parties desire future contact
  • Future communication with intended parents, the child or donor

As important as egg donation and sperm donation agreements are, you may still need to take additional steps after the child is born to ensure that your parentage cannot be challenged.

If you are an unmarried couple or a married or unmarried same-sex couple, it is important for you to consult with experienced counsel to determine what further legal action is recommended to ensure that the parental relationship between the child and non-biologically related parent is legally secured.

Same-Sex Married Couples

When a child is born to a same-sex married couple in New York or New Jersey, both parents will be named as parents on the child’s birth certificate. However, being married to the biological parent of the child and being named on a child’s birth certificate does not fully protect your legal relationship to your child. The reason is that many states do not apply the concept of marital presumption (that a child born in wedlock is the legal child of both spouses) to parents in a same-sex marriage. Therefore, if you are not genetically related to your spouse’s child, it is important for you to petition the court for an order of parentage or adoption declaring you to be the child’s legal parent. That order will ensure that your parental rights are recognized throughout the United States.

While we understand that this legal process may seem to be an unnecessary cost and inconvenience, particularly at a time when you just want to enjoy your child, in our experience the benefits derived are worth it. We urge you to obtain an order of adoption or an order of parentage so that your parental relationship with your child will be legally secure no matter where you live and regardless of your relationship with your spouse.

Unmarried Couples

In New York or New Jersey unmarried couples having a child together with the assistance of a gamete donor can legally secure the parental relationship of the non-biologically related parent to the child through a second-parent adoption.

In 2016, the New York Court of Appeals issued a very important ruling addressing the parental rights of the non-biologically related parent of a child conceived through donor insemination.  In Matter of Brooke S.B. v Elizabeth A.C.C., the court ruled that when the biological parent and her partner jointly planned the conception of a child with the intent that they would both be parents, the non-biological parent has standing to request custody and visitation with the child even after the relationship between them dissolves.

The decision reversed decades of prior New York case law, and Rumbold & Seidelman was pleased to have participated in drafting one of the briefs submitted to the court of appeals. At Rumbold & Seidelman, we believe that this important decision will allow non-biological parents in New York to obtain an order of parentage — a court order declaring that both parents are the legal parents of the child — whether or not the parents were married to each other and without the need for an adoption.

Embryo Donation and Adoption

Another option for assisted reproduction is through embryo donation and adoption. This process emerged as a response to the thousands of frozen embryos which are currently being stored by couples no longer needing them to build their families. For a variety of reasons, many people with frozen embryos do not want to destroy them and would prefer to donate them to others seeking to build their families.

Embryo donation can be a great option for single women as well as couples who are unable to use their own gametes.  For parents who cannot conceive using their own gametes, embryo donation (sometimes referred to as embryo adoption) allows them to experience their own pregnancy using an embryo created by others.

Embryo Donation and Adoption in New York and New Jersey

Embryos are sometimes donated anonymously to embryo donation programs. At other times, the embryo donor(s) and embryo recipient(s) deal directly with one another to transfer control and custody of the embryos from the donors to the recipients. In an IVF embryo donation, it is anticipated that ownership of the embryos will be legally transferred to the embryo recipient(s). Once that occurs, the recipient(s) have decision-making authority over the embryos and can therefore use them to become pregnant with a child who will be their legal child.

An embryo donation agreement between donors and recipients is a critical step in the process, and it’s important to work with a lawyer with expertise in assisted reproductive technology law. At Rumbold & Seidelman, we can draft the embryo donation agreement to ensure that the rights and obligations of embryo donors and embryo recipients are clearly established and legally protected.

Some of the issues addressed in the embryo donation agreement are:

  • Parental rights to the child
  • Desired confidentiality
  • The disposition of embryos no longer needed for procreation
  • Responsibility for storage fees
  • Establishing a mechanism for sharing medical information
  • Potential legal and medical risks
  • Whether the parties desire future contact

As members of the Academy of Adoption and Assisted Reproduction Attorneys, we are recognized as experts in this field and are among  the small group of  legal professionals in New York and New Jersey with the experience required to make your contract process as easy and smooth as possible.

Disposition of Frozen Embryos

Whether you are currently undergoing IVF treatments, have embryos that were donated to you or have embryos which you created but are no longer using, we can advise you with regard to the disposition of your embryos.

Every reputable IVF clinic and embryo storage facility will require that you complete a “disposition agreement.” The disposition agreement instructs the IVF clinic or storage facility about how to handle your cryo-preserved embryos in the event of divorce or separation or the death of one or both of you. Although this disposition agreement can have profound consequences on your ability to use the stored embryos in the future, many people fail to adequately think through their disposition options.

Depending on your circumstances and the choices you wish to make with respect to the disposition of your embryos, it may be advisable for you to work with an attorney who can draft legal documents to secure your choices and address any inheritance and survivor benefits implicated by the use of your cryo-preserved embryos, including the rights of a posthumously conceived child.

If you have any questions about the legalities of sperm donor agreements and waivers of rights, embryo donation and embryo adoption or the disposition of embryos, you can contact us anytime at 888-962-3001 or through our online form.

Even if you just have questions about the gamete donation process, feel free to contact us; we are happy to “demystify” the process for you.

  • 116 Kraft Avenue, Suite 3
  • Bronxville, NY 10708
  • Tel: 914-779-1050

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